Chemerinsky: What we learned about SCOTUS this term

Above all, October Term 2012 powerfully shows that U.S. Supreme Court decisions affect each of us, often in the most important and intimate aspects of our lives. On Wednesday, June 26, the Supreme Court dismissed on jurisdictional grounds the case involving California’s Proposition 8. Two days later same-sex couples began marrying in California. The court’s decisions over the last few weeks will determine who gets in to college, the benefits under 1,000 federal laws accorded to marriage same-sex couples, and what voting systems will be in place and perhaps then who wins elections.

Once more, it was the Anthony M. Kennedy Court. Justice Kennedy was in the majority 91 percent of the time, more than any other justice. Chief Justice John G. Roberts Jr. was the second justice most often in the majority, 86 percent of the time. In the non-unanimous cases, Kennedy was in the majority 83 percent of the time, which was 10 percentage points higher than the runner-up, Roberts.

But it is the 5-4 decisions where Kennedy’s influence is best seen. Out of 73 cases decided after briefing and oral argument, 23 were decided 5-4. Kennedy was in the majority in 20 of them. Justice Antonin Scalia was the second most often in the majority in 5-4 cases, but only in 13.

It therefore is possible to get the clearest overall sense of the ideology of the term by focusing on the 16 cases decided 5-4 that were ideologically divided along familiar lines, with Justices Clarence Thomas and Samuel A. Alito Jr. joining Roberts and Scalia on one side and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan on the other. Kennedy was with the conservatives in 10 and with the liberals in 6 of these cases.

So what were some of the more important constitutional cases of the term and what will they mean?

Affirmative action: In Fisher v. University of Texas, Austin, the court remanded for further consideration a challenge to a University of Texas affirmative action plan. Texas used race as one of many factors in admissions decisions to benefit minorities and enhance diversity. The court, in a 7-1 decision with Justice Kennedy writing for the majority, held that the lower courts had not adequately considered whether Texas had shown that race was necessary in order to achieve diversity. The court remanded the case to the New Orleans-based 5th U.S. Circuit Court of Appeals and said, “The reviewing court must ultimately be satisfied that no workable race neutral alternatives would produce the educational benefits of diversity.”

The greatest significance of the case is in what the court did not do: it did not reconsider Grutter v. Bollinger, which held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor in admissions decisions to benefit minorities. The result is that affirmative action programs at colleges and universities across the country may continue, but the court made clear that if challenged, they must show that no race neutral alternative can achieve diversity.

Fourth Amendment: This was a big year for the Fourth Amendment in the court, which decided five cases. Likely the most important two were Florida v. Jardines and Maryland v. King. In the former, the court ruled that it was a search for a police officer to take a drug sniffing dog on to the front porch of a home without the consent of the homeowner. Justice Scalia, writing for the majority in a 5-4 decision, held that taking the dog on to the property was a trespass and that is sufficient for it to be a search under the Fourth Amendment.

In Maryland v. King, the court held 5-4 with Justice Kennedy writing for the majority, that it did not violate the Fourth Amendment for the police to routinely take DNA from those arrested for serious crimes to help solve other crimes for which the individual is not a suspect. The court stressed that the police action was reasonable because the benefits to law enforcement outweighed the invasion of privacy and likened this to taking fingerprints from those arrested.

Beyond limiting dog sniffs at homes and approving taking DNA from arrestees, these cases show the failure of the court to deal with a crucial underlying issue: when should the police be able to gather information about an individual, whether it is about what is going on in the home or from the person’s DNA, without a warrant and probable cause. Informational privacy is the key question in a society where it is increasingly easy for police to gather information about people and their activities.

Marriage equality: In United States v. Windsor, the Supreme Court declared unconstitutional Section 3 of the Defense of Marriage Act, which provided that for purposes of federal law marriage must be between a man and a woman. Justice Kennedy, writing for a 5-4 majority, explained that marriage has traditionally been defined by states and that it violated equal protection for the federal government to refuse to recognize a same-sex marriage that New York allowed. There are more than 1,000 federal laws that provide benefits to married couples; now same-sex couples who are married in states that permit this will receive all of these benefits.

In Hollingsworth v. Perry, the court dismissed a defense of California’s Proposition 8 on standing grounds. California’s Proposition 8, adopted by the voters in November 2008, amended the California Constitution to say that marriage must be between a man and a woman. Two same-sex couples brought a challenge to Proposition 8. In 2010, a federal district court in San Francisco declared Proposition 8 unconstitutional because it denied equal protection and violated the right to marry for gays and lesbians. The district court enjoined the defendant state officials, including the governor and attorney general, from enforcing it. The defendants chose not to appeal, but the supporters sought to appeal to defend the initiative. The 9th U.S. Circuit Court of Appeals, based in San Francisco, ruled that the supporters of the initiative had standing, but then declared Proposition 8 unconstitutional.

The Supreme Court, in a 5-4 decision with Chief Justice Roberts writing for the court, held that the supporters of an initiative lack standing to appeal if the defendant government officials choose not to do so. Standing in federal court requires an injury, and the supporters of an initiative are not injured by its being enjoined; their only harm is ideological, which is never enough for standing. The result is that the federal district court ruling declaring Proposition 8 unconstitutional stands and same-sex couples can now marry in California.

Undoubtedly, the next step in marriage equality litigation will be challenges to state laws around the country that deny marriage equality to gays and lesbians. In a vehement dissent in Windsor, Justice Scalia said that it is only a matter of time before these laws are declared unconstitutional. In this prediction, he is almost surely correct.

Voting rights: The Voting Rights Act of 1965 is one of the most important federal laws adopted in my lifetime. Section 2 prohibits state and local governments from having election practices or systems that discriminate against minority voters. Lawsuits can be brought to enforce it. But Congress believed that this was not sufficient to stop discrimination in voting. Congress knew that litigation is expensive and time consuming. Congress also knew that Southern states especially continually changed their voting systems to disenfranchise minority voters.

Section 5 of the Voting Rights Act provides that jurisdictions with a history of race discrimination in voting may change their election systems only if they get “preclearance” from the attorney general or a three-judge federal district court. Section 4(B) of the act defines those jurisdictions which must get preclearance–nine states and many local governments with a history of race discrimination in voting.

Each time the law was about to expire, Congress extended it. Most recently, the law was set to expire in 2007 and Congress held 12 hearings over 11 months and produced a record of 15,000 pages. The Senate voted 98-0 to extend the law for another 25 years and there were only 33 “no” votes in the House of Representatives. President George W. Bush signed the extension into law.

In Shelby County, Alabama v. Holder, the court held 5-4 that Section 4(B) is unconstitutional and thereby also nullified Section 5 because it applies only to jurisdictions covered under Section 4(B). Chief Justice Roberts wrote for the court and stressed that the formula in Section 4(B) rests on data from the 1960s and 1970s. He said it was an intrusion of state and local sovereignty to require that they “beseech” the attorney general to approve their election systems. It thus exceeded Congress’s powers and violated the Tenth Amendment for Congress to require preclearance from these jurisdictions.

In theory, Congress can enact a new version of Section 4(B) based on contemporary data. In reality, it is hard to imagine Congress being able to ever agree on a new formula. The effect likely will be a significant increase in litigation under Section 2 and also many election systems going into place that otherwise would have been rejected because of their impact on minority voters.

Conclusion: Although these are only some of the cases from October Term 2012, they certainly illustrate that it was an amazing year in the Supreme Court, one that will affect each of us.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.